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Contents Preface 00 Acknowledgments 00 PART I OVERVIEW 00 Chapter 1 Disputing Procedures 00 A. The Processes 00 B. Sources and Goals of the Alternative Dispute Resolution 00 Movement C. Applications 00 D. Concerns 00 References 00 PART II PROCESSES 00 Chapter 2 Negotiation 00 M. Meltsner and P. Schrag, Negotiating Tactics for Legal Services Lawyers 00 H. Raiffa, The Art and Science of Negotiation 00 Questions 00 Note: Pricipled Negotiation 00 Question 00 W. Ury, Getting Past No 00 J. White, The Pros and Cons of ⿿⿿Getting to Yes⿿⿿ 00 R. Fisher, W. Ury, and B. Patton, Getting to Yes 00 D. Lax and J. Sebenius, The Manager as Negotiator 00 Question 00 R. Mnookin, S. Peppet, and A. Tulumello, The Tension Between Empathy and Assertiveness 00 D. Lax and J. Sebenius, The Manager as Negotiator 00 Questions 00 Note: The Janus Quality of Negotiation ⿿ Deal-making and Dispute Settlement 00 J. Rubin and F. Sander, When Should We Use Agents? Direct vs. Representative Negotiation 00 Questions 00 J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation 00 xi Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:56:59 [pp-11] xii Contents ABA, Model Rule of Professional Conduct 4.1 00 ABA, Model Rule of Professional Conduct 1.6 00 G. Shell, When Is It Legal to Lie in Negotiations? 00 Questions 00 R. Mnookin, Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict 00 Exercises 00 References 00 Chapter 3 Mediation 00 A. The Practice of Mediation 00 N. Rogers and R. Salem, A Student⿿s Guide to Mediation and the Law 00 R. Fisher and W. Ury, Getting to Yes 00 Question 00 F. Knebel and G. Clay, Before You Sue 00 Question 00 Note: The Role of Apology in Dispute Resolution 00 Note: Dealing with Impasse 00 Questions 00 Note: Dealing with Differences 00 Question 00 B. Public Encouragement of Mediation 00 1. The Parties⿿ Satisfaction with the Process and Result 00 2. The Role of the Law and the Role of the Community 00 3. Equal Justice 00 4. The Effect on the Courts 00 Question 00 C. Social Science Assessments of Mediation 00 C. McEwen, Note on Mediation Research 00 Question 00 D. Regulating Mediation 00 1. Standards of Quality for Mediation 00 a. Fairness 00 b. Costs 00 c. The Effectiveness of the Justice System 00 d. A Word on Comparative Standards 00 Questions 00 2. Enforcement Mechanisms 00 a. Mediator Qualifications 00 Society of Professionals in Dispute Resolution, 00 Report of the SPIDR Commission on Qualifications Note 00 Questions 00 S. Cole, Mediator Certification: Has the Time Come? 00 Questions 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:00 [pp-12] Contents xiii b. Holding the Mediator Accountable 00 Note: The Life of the Mediator ⿿ To Be or Not to Be (Accountable) 00 Note: Mediator Accountability 00 Questions 00 c. Required Mediation Procedures 00 Questions 00 E. The Lawyer-Mediator and Professional Responsibility 00 1. The Provision of Legal Information and Drafting 00 Assistance During Mediation Sessions Involving Unrepresented Parties R. Crouch, The Dark Side of Mediation: Still Unexplored 00 Association of the Bar of the City of New York, Opinion Number 80-23 00 Questions 00 2. Representation of or Advocacy Against a Mediation Participant and Mediation Involving Prior Clients; Imputed Conflicts 00 McKenzie Construction v. St. Croix Storage Corp. 00 CPR Institute for Dispute Resolution-Georgetown Commission on Ethics and Standards in Alternative Dispute Resolution ⿿ Model Rules for the Lawyer Neutral 00 Questions 00 S. Cole, Unauthorized Practice of Law Charges: A Risk for Lawyers Representing Clients in Mediation and Arbitration in a Multi-jurisdictional Practice Environment 00 Mediation Exercises 00 References 00 Chapter 4 Arbitration 00 A. The Process 00 Arbitration or Litigation: A Dialogue 00 Question 00 S. Houck, Complex Commerical Arbitration: Designing a Process to Suit the Case 00 Questions 00 B. Legal Issues in Arbitration 00 1. Preemption 00 Southland Corp. v. Keating 00 Note 00 Question 00 Note on Application of Preemption Doctrine 00 Questions 00 Note on Circuit City v. Adams 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:00 [pp-13] xiv Contents Note on Class Actions and Arbitration Agreements 00 Green Tree Financial Corp. v. Bazzle 00 Questions 00 2. Revised Uniform Arbitration Act 00 Questions 00 3. Arbitrability 00 Questions 00 Buckeye Check Cashing, Inc. v. Cardegna 00 Questions 00 First Options of Chicago, Inc. v. Kaplan 00 Note on Arbitrability 00 C. Arbitration of Statutory Claims 00 Notes 00 D. Arbitration of Statutory Claims: Application to Employment Disputes 00 1. Repeat vs. One-Shot Players 00 2. Arbitration of Statutorily-Based Employment Claims 00 a. Knowing and Voluntary Waiver of the Right to Sue 00 Question 00 b. Fairness of the Arbitration Procedure 00 Commission on the Future of Worker-Management Relations, Report and Recommendations 00 Task Force on Alternative Dispute Resolution in Employment, Due Process Protocol 00 Cole v. Burns International Securities Services 00 Questions 00 1. Arbitration Costs 00 a. Arbitrator⿿s Fees 00 b. Arbitration Filing Fees 00 Questions 00 2. Conscionability of the Arbitration Agreement 00 Hooters of America, Inc. v. Phillips 00 Questions 00 Note on Unconscionability 00 Notes and Questions 00 c. The Impact of Arbitration Agreements on the EEOC⿿s Continuing Role in Employment Discrimination Cases 00 EEOC v. Waffle House, Inc. 00 Notes 00 d. The Scope of Judicial Review of Arbitration Awards 00 Halligan v. Piper Jaffray, Inc. 00 Note 00 Note and Questions on Limitations on Judicial Review of Arbitration Awards 00 Hoeft v. MVL Group, Inc. 00 Questions 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:01 [pp-14] Contents xv E. Arbitration Ethics 00 1. Arbitrator Ethics 00 2. Ethics of Third-Party Provider Organizations 00 Questions 00 References 00 Chapter 5 Combining and Applying the Basic Processes 00 A. Introduction 00 B. Innovations in the Processes 00 1. Variants of Arbitration 00 a. Arbitration of Disputes About Contract Terms and Final Offer Arbitration 00 b. Arbitration Under a ⿿⿿High-Low⿿⿿ Contract 00 c. Tripartite Arbitration 00 d. Med-Arb 00 e. Court-Annexed Arbitration 00 Questions 00 Exercise 00 2. Minitrial 00 Exercise 00 3. Summary Jury Trial 00 Questions 00 4. Early Neutral Evaluation and ⿿⿿Rights-Based⿿⿿ Mediation 00 5. Ombudsman 00 L. Singer, Settling Disputes 00 Note 00 C. Dispute Systems Design 00 S. Goldberg, J. Brett, and W. Ury, Designing an Effective Dispute Resolution System 00 C. Costantino and C. Merchant, Designing Conflict Management Systems 00 1. Implementing the Design 00 2. Assessing Whether the Design ⿿⿿Works⿿⿿ 00 Questions 00 D. Selection of the Process 00 1. Lawyers 00 F. Sander and S. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure 00 2. Courts 00 Questions 00 Exercise 00 E. Representing a Client in Mediation 00 1. Discovery and Appropriate Timing for Dispute Resolution Processes 00 Questions 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:01 [pp-15] xvi Contents 2. Premediation 00 L. Riskin, The Represented Client in a Settlement Conference: The Lessons of G. Heileman Brewing Co. v. Joseph Oat Corp. 00 3. Advocacy During Mediation 00 Questions 00 4. Ethical Issues 00 5. Making the Decision to Settle: Decision Analysis 00 M. Aaron and D. Hoffer, ⿿⿿Decision Analysis as a Method of Evaluating the Trial Alternative⿿⿿ in D. Golann, Mediating Legal Disputes 00 Some Questions About Decision Analysis 00 Questions 00 6. Postmediation 00 F. Applications 00 1. E-ADR 00 Question 00 2. Streams of Cases 00 Questions 00 3. Collaborative Lawyering 00 4. Single Complex Case 00 F. McGovern, Toward a Functional Approach for Managing Complex Litigation 00 References 00 PART III DISPUTE RESOLUTION AND THE JUSTICE SYSTEM 00 Chapter 6 Courts and ADR 00 A. The Role of Courts 00 O. Fiss, Against Settlement 00 Manufacturers Hanover Trust Co. v. Nicholas Yanakas 00 Question 00 B. Court-Related Processes 00 E. Gray, One Approach to Diagnostic Assessment of Civil Cases: The Individual Case-Screening Conference 00 Question 00 Note: Empirical Research 00 C. Mandatory Participation and Pressure to Settle 00 SPIDR, Mandated Participation and Settlement Coercion: Dispute Resolution as It Relates to the Courts 00 F. Sander, H. Allen, and D. Hensler, Judicial (Mis) Use of ADR? A Debate 00 Questions 00 Strandell v. Jackson County, Ill. 00 Note 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:01 [pp-16] Contents xvii Question 00 In re Atlantic Pipe Corp. 00 Note 00 Note: Compulsory Attendance of Parties 00 E. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Participation Should Be Required? 00 Questions 00 D. The Role of Private Providers 00 W. Brazil, Comparing Structures for the Delivery of ADR Services by Courts: Critical Values and Concerns 00 Question 00 R. Chernick, H. Bendix, and R. Barrett, Private Judging: Privatizing Civil Justice 00 Questions 00 References 00 Chapter 7 Confidentiality 00 A. Introduction 00 B. Rights to Resist Disclosure Within Legal Proceedings 00 Folb v. Motion Picture Industry Pension & Health Plans 00 Questions 00 Note: The ⿿⿿Holder⿿⿿ of the Privilege 00 Questions 00 State v. Castellano 00 Questions 00 1. Accommodating the Interests of Justice: Predictability Versus Fine Tuning 00 Olam v. Congress Mortgage Company 00 Note on ⿿⿿Qualified⿿⿿ vs. ⿿⿿Categorical⿿⿿ Privilege 00 2. Conflict of Laws 00 Questions 00 C. The Neutral⿿s Obligation to Maintain Confidentiality 00 1. Confidentiality Agreements and Protective Orders 00 2. Ethical and Legal Obligations 00 D. Limits on Confidentiality Because of Policies Favoring Reporting or Warning 00 C. R. & S. R. v. E. 00 Questions 00 E. Limits on Confidentiality Because of Public Access Rights 00 Bank of America National Trust & Savings Association v. Hotel Rittenhouse Associates 00 Cincinnati Gas & Electric Gas Co. v. General Electric Co. 00 Note 00 Questions 00 References 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:01 [pp-17] xviii Contents PART IV SELECTED APPLICATIONS 00 Chapter 8 Family Disputes 00 A. Divorce Mediation Practice 00 J. Haynes, Divorce Mediation 00 J. Folberg, Divorce Mediation: Promises and Problems 00 Questions 00 J. Pearson, Family Mediation 00 B. Mediation and Lawyers 00 C. McEwen and N. Rogers, Bring the Lawyers into Divorce Mediation 00 Question 00 C. Mediation and Spousal Abuse 00 R. Rimelspach, Mediating Family Disputes in a World with Domestic Violence: How to Devise a Safe and Effective Court-Connected Mediation Program 00 Note: Domestic Violence and Mediation 00 D. Mediation Clauses 00 Questions 00 References 00 Chapter 9 Public Disputes 00 L. Susskind and J. Cruikshank, Breaking the Impasse 00 Questions 00 Note: Consensus Building 00 S. McKearnan and P. Field, The Northern Oxford County Coalition: Four Main Towns Tackle a Public Health Mystery 00 Question 00 Note: Negotiated Rulemaking 00 Questions 00 Exercises 00 References 00 Chapter 10 International Disputes 00 A. Negotiating and Mediating Public Disputes 00 J. Carter, Keeping Faith 00 Note 00 Questions 00 B. Arbitrating Private Disputes 00 C. Bu¿hring-Uhle, Arbitration and Mediation in International Business 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:02 [pp-18] Contents xix Y. Dezalay and B. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order 00 A. Guzman and B. Simmons, To Settle or Empanel? An Empirical Analysis of Litigation and Settlement at the World Trade Organization 00 Question 00 Exercise 00 C. Negotiating Private Disputes 00 Exercise 00 References 00 Chapter 11 Learning From Other Cultures 00 A. Cross-Cultural Negotiation 00 J. Rubin and F. Sander, Culture, Negotiation, and 00 the Eye of the Beholder Note 00 Question 00 B. Listening to the World on the Design of Dispute Resolution Systems for Identity Group-Based Conflicts 00 1. Identity Group-Based Conflict Resolution in Other Nations 00 M. Hamilton and D. Bryan, Deepening Democracy? Dispute System Design and the Mediation of Contested Parades in Northern Ireland 00 R. Goldstone, The South African Truth and Reconciliation Commission 00 Questions 00 2. The Community Relations Service 00 Questions 00 Negotiation Exercises 00 References 00 PART V THE FUTURE OF ADR 00 Chapter 12 The Future of ADR 00 A. The Societal-Public Perspective 00 Questions 00 B. The Student Perspective: ⿿⿿Can I Earn a Living in ADR?⿿⿿ 00 J. Alfini and E. Galton, ADR Personalities and 00 Practice Tips References 00 Dispute Resolution - 2nd edition (Goldberg) 2-16-07 19:57:02 [pp-19] xx Contents PART VI DISPUTE RESOLUTION PROBLEMS 00 Chapter 13 Dispute Resolution Problems 00 13.1 Irving Weston v. Lawyer⿿s Press, Inc. 00 13.2 The Matter of Casey⿿s Fee 00 13.3 American Can Co. v. Wisconsin Electric Power Co. 00 13.4 The Matter of the HAL 2001 Computer 00 13.5 Cincinnati Foods 00 13.6 Dyna-Mo Co. 00 13.7 The Case of Neighborhood Care, Inc. 00 13.8 Whittamore v. Fairview Clinic 00 13.9 University Housing Disputes 00 13.10 Griswold v. Langdell 00 13.11 Citizens v. Western Nuclear Corp. 00 13.12 Satcom, Inc. v. Telecom 00 13.13 A Neighborhood Dispute 00 13.14 Thomas v. Eagle Rifle Co. 00 13.15 The Virginia Medical Group 00 13.16 Due Process for Mediation Cases? 00 Appendix A. Dispute Resolution Clauses 00 Appendix B. Federal Arbitration Act 00 Appendix C. Uniform Arbitration Act 00 Appendix D. Revised Uniform Arbitration Act 00 Appendix E. Uniform Mediation Act 00 Appendix F. National Standards for Court-Connected Mediation Programs 00 Appendix G. Model Standards of Practice for Family and Divorce 00 Mediation Appendix H. Model Standards of Mediator Conduct 00 Appendix I. Dispute Resolution: An Annotated Guide to Selected Resources 00 Table of Cases 00 Collected References 00 Index 00
Library of Congress Subject Headings for this publication:
Dispute resolution (Law) -- United States.